Roger Vanderklok was falsely arrested at a TSA checkpoint at the PHL airport on January 26, 2013, “Because a TSA Supervisor did not like something Mr. Vanderklok said to him and because Philadelphia Police personnel failed to perform their duties and arrested him without probable cause.”

Mr. Vanderklok was on his way to Miami to run in a marathon, and had some “Power Bars” (essentially a cross between candy bars and granola bars marketed to athletes), in their original sealed and labeled packaging, and a sports watch with a heart rate sensor in his carry-on luggage.

Under oath in Municipal Court, the TSA supervisor testified that his attention was directed to Mr. Vanderklok when Mr. Vanderklok became “irate” and started angrily waving his arms and hands in the air. The TSA supervisor demonstrated this for the Court. The TSA supervisor testified that he approached Mr. Vander clock, who eventually stated: “Let me tell you something — I’ll bring a bomb through here any day that I want … you’ll never find it.”…

The TSA supervisor testified that “the passenger [Mr. Vanderklok] put his finger in my face.” He went on to demonstrate for the court. He testified that Mr. Vanderklok’s finger came within six to eight inches of his face. He testified that Mr. Vanderklok moved his finger towards and away from his face approximately six times.

It’s clear from the video that Mr. Vanderklok made no such movements or gestures. It’s also clear that the Philadelphia police took him into custody as soon as they arrived, without further ado.

Despite the inept efforts of the police to destroy the evidence against themselves (Mr. Mocek’s audio and video recording of his false arrest, which he was able to recover) and their equally inept efforts to lie about what had happened in their written reports and in their testimony at Mr. Mocek’s criminal trial, Mr. Mocek was acquitted by an Albuquerque jury on January 21, 2011, of all of the charges that were trumped up after the fact to try to justify his arrest.

On November 14, 2011, Mr., Mocek sued the TSA, the city of Albuquerque and its police, and the individual TSA employees and police officers responsible for depriving him of his civil rights.

In pre-trial rulings on January 24, 2013 and February 28, 2014, a Federal District Court judge in Albuquerque dismissed all of Mr. Mocek’s complaints against the various Federal government, local government, and individual defendants on the grounds that:

The TSA and its employees were not responsible for what happened to Mr. Mocek after they called the police. The TSA swears that its checkpoint staff have no authority to arrest anyone or tell the police to do so. But this issue is now the subject of an explicitly acknowledged dispute between the 4th Circuit (”It is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and [airport] police act in close concert”) and the 3rd Circuit (”[I]t seems just as likely that police officers who are summoned by TSA Officials would use their own independent discretion to determine whether there are sufficient grounds to take someone into custody”).

The defendants all had “qualified immunity” from liability because the First Amendment right to film and record the actions of the TSA and police at a checkpoint for passengers passing through a publicly-owned and operated airport en route to flights operated by Federally-licensed interstate common carriers was either nonexistent or not “clearly established”. This makes a mockery, of course, not just of the First Amendment itself but of the entire body of “Freedom Rider” case law concerning the First Amendment rights of interstate common-carrier (bus) passengers passing thrrough publicly and even at privately-owned and operated terminal and transit facilities.

“Identification” is required to enter the courthouse, but there don’t appear to be any published rules as to what constitutes sufficient ID. According to Local Rule 57.4 (”Security”):

On request of a United States marshal, court security officer, federal protective service officer, or court official, anyone within or seeking entry to any court building shall produce identification and state the nature of his or her business. Failure to provide identification or information shall be grounds for removal or exclusion from the building.

Photography, audio or video recording, or broadcasting are prohibited anywhere inside the courthouse (not just in courtrooms). Cameras and recording or broadcasting devices that lack any other functions are barred form the courthouse. Cell phone, laptops, and other electronic devices are allowed in the courthouse, and may be used (silently and without photography or audio or video recording or broadcasting) in the courtroom, subject to these rules of the 10th Circuit Court of Appeals and of the U.S. District Court for the District of Colorado, which manages the building in which both courts are located.

We’ll be in Denver on March 17th to observe and report on this hearing and to show our continued support for Mr. Mocek. We invite you to join us inside and/or outside the courthouse, and/or to help pay off Mr. Mocek’s debts for the costs of defending himself against the original false criminal charges.

Federal law protects employees against firing or other retaliation for “any disclosure of information by an employee … which the employee … reasonably believes evidences — (i)any violation of any law, rule, or regulation, or (ii)gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

There’s an exception for properly classified information or any other information, disclosure of which is “specifically prohibited by law.”

The TSA fired air marshall Robert MacLean for going to members of Congress, the press, and eventually the public with information about TSA actions which he resonably believed was evidence of a substantial and specific threat to public safety. The TSA said the information MacLean had released was SSI, disclosure of which is prohibited by TSA regulations.

The Supreme Court agreed with MacLean and the 9th Circuit Court of Appeals that TSA regulations prohibiting disclosure of SSI are just that, “regulations”, and not “laws”. Because disclosure of SSI is not prohibited by “law”, but only only by regulation, Federal employees who disclose SSI are protected as whistleblowrs, as long as they resonably believe that the SSI is evidence of illegality, mismanagement, waste, or danger to public health or safety as defined in the law.

Having found that disclosure of SSI is, in these circumstances, protected by the whistleblower law, the Supreme Court didn’t need to reach the question of whether the TSA could retroactively designate information as SSI or impose sanctions for disclosing it before it was designated as SSI.

Would-be TSA or other DHS whistleblowers should not underestimate the continued potential for (illegal) retaliation for whistleblowing. The DHS defended its retaliatory firing of Mr. MacLean all the way to the Supreme Court, at huge expense to him and to the taxpayers. He still doesn’t have his job back, and hasn’t been compensated (although we hope he now will be) for his lost wages.

But we hope that despite the risks of whistleblowing, this ruling encourages TSA employees to disclose more of the information that the TSA has defined as SSI not in order to protect the public, but to protect itself against exposure of its mismanagement and its violations of individuals’ rights and other laws.

The US government’s use of smear tactics to evade judicial review of its secret, standardless administrative”no-fly” orders has reached a new low with the latest developments in the case of Gulet Mohamed.

Mr. Mohamed’s saga began when his name was added to the US no-fly list in 2010, while the then-teenaged US citizen was visiting relatives abroad. Unable to return home to his family in the suburbs of Washington, he was eventually locked up incommunicado in Kuwait for overstaying his visa. Between sessions of torture by his Kuwaiti captors, he was interrogated by FBI agents who told him the only way out of his predicament would be to become an FBI informant.

Ever since then, Mr. Mohamed and his lawyers have been struggling for his day in court, before a judge and/or a jury, to decide whether he was rightfully deprived of his rights to travel by licensed common carrier, to return to the country of his citizenship (the USA), to travel freely within the US, and to leave the country again if he should so choose.

After four years of unsuccessful efforts by the US government to get the case thrown out of court without a trial, Mr. Mohamed was on the verge of the first-ever review by a judge of the “derogatory information” purportedly justifying an administrative no-fly order. After the rejection of motions to dismiss the case as moot (after Mr. Mohamed was given a “one-time waiver” to return to the US) and then on the grounds that the entire question of whether he was on the no-fly list was a state secret (despite being a painfully obvious fact), the government defendants tried to buy time or avert a trial with motions to reconsider, motions for “clarification“, and a “response” to the judge’s latest and final order to show him the alleged “secrets” that amounted to a renewed request for reconsideration.

A hearing on whether the case should be dismissed or should proceed to trial was scheduled for last Friday, January 30th.

(There’s more about Liban Mohamed from Glenn Greenwald — who had interviewed him several times over the years in conjunction with his brother’s lawsuit and his own later discovery that he too had been placed on the no-fly list — and from Gulet Mohamed’s lawyer Gadeir Abbas, via the AP. It appears that, if the accusations against Liban are true, they mostly reflect the government’s success in alienating its own citizens and creating enemies through its crudely Islamophobic tactics of political repression.)

What are we to make of these developments? We can’t be certain, but we have a theory that fits the facts. And it doesn’t reflect well on the US government.

Throughout more than a decade of no-fly litigation, the government has treated judicial review as a greater threat than air terrorism. People on the no-fly list, including Gulet Mohamed, have been allowed to fly (at the “discretion” of the people giving the secret orders, and possibly with “air marshals” sitting next to them). But nobody has yet been allowed to have a judge or jury review whether there is a lawful basis for depriving them of their right to travel by common carrier.

That may seem like a damaging admission, and it was. But it also allowed the government to argue that, because the government had now admitted that Dr. Ibrahim didn’t “belong” on the no-fly list, it was no longer necessary for the judge to decide what would constitute sufficient grounds for a no-fly order, review any evidence that might have supported a no-fly order, to determine whether any such evidence should be disclosed to Dr. Ibrahim and/or her lawyers, or to determine whether it was a “state secret”.

Dr. Ibrahim has never been a US citizen, so the US government was able to effectively prevent her from ever flying to the US again, even while taking her off the no-fly list, by revoking her US visa. And under US law, a foreign citizen is not entitled to judicial review of a visa denial. Mission (of secrecy) accomplished.

Because Gulet Mohamed is a US citizen, the government couldn’t moot his legal case as easily.

We suspect that the government’s goal in making public its accusations against Gulet’s brother Liban is to provide a purported basis for placing Gulet on the no-fly list — his brother is a “most wanted” person accused of terrorism — that is now public and doesn’t depend on any alleged “state secrets”. So the government can now argue that Judge Trenga doesn’t need to inquire further into the purported “state secrets”, whether there is any further evidence against Gulet, or whether any such evidence is sufficient to justify the no-fly order approved by the FBI and secretly given to airlines by the DHS.

Three things are profoundly wrong with this picture, of course:

First, there’s no need to put Liban Mohamed on the no-fly list if there’s already a warrant out for his arrest.

Second, what happened to the presumption of innocence?

Liban Mohamed has been accused “by complaint” — that is, by a prosecutor’s accusation that hasn’t even been put before a grand jury, much less a judge.

Travel restrictions are a common condition of release pending trial, but as such they can be imposed only by a court order, on the basis of a showing that they are necessary to assure attendance at trial — not on a prosecutor’s say-so before the accused has even been brought before a judge or had a chance to contest whether there is sufficient basis for the accusations against him to justify bringing him to trial.

Third, isn’t this the crudest and most illegitimate sort of guilt by association?

What would we think, in any other situation, of a government claim that your rights can be restricted or denied because of something one of your siblings has done, even if they were proven to have done it, without the need to show that you had any involvement or culpability for their illegal actions? Should we, and can we legally, be held liable for every act of any of our siblings (even if they have been convicted, which Liban Mohamed has not)? And if our sibling has merely been accused but not convicted, should we and all his other siblings be subject to government constraints on our movements while he awaits trial?

This sort of familial taint comes frighteningly close to the “corruption of the blood” expressly forbidden by the Constitution even in cases of treason (a crime of which neither Mohamed brother has been accused).

Whatever the truth or falsehood or evidentiary basis, if any, for the FBI’s accusations against Liban Mohamed, they provide no excuse whatsoever for what has been done, and continues to be done, to his brother. Gulet Mohamed remains entitled to confront his accusers, to see the evidence (if any) against him, and to have the basis for the no-fly order against him reviewed by a judge and/or a jury.

In addition, as part of the settlement agreement with Nick George and the police (who had made a counter-claim the TSA for telling them to arrest Mr. George), the TSA has issued a fascinating official declaration that it has no authority to order anyone arrested and that police are not required to take any action on TSA “referrals”.

The TSA can (and sometimes does, as in the ongoing case of “Naked American Hero” John Brennan) initiate its own administrative procedures to fine you for whatever it defines as “interfering” with “screening”. But the latest TSA declaration confirms that TSA staff (much less TSA contractors at airports such as SFO) are not law enforcement officers, have no power to arrest anyone (except at their own risk, as a citizen’s arrest), and cannot legally order anyone arrested. As we have been saying for years, all they can do is call the local police. Once the police arrive, they can only detain or arrest you if they — the police, not the TSA — have a lawful basis for doing so. “The TSA asked us to hold you or take you away” is not sufficient.

In another case of retaliation for the exercise of 1st Amendment rights as a TSA checkpoint, the 4th Circuit had found that, “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested.” But the 3rd Circuit begged to differ, finding that, “it seems just as likely that police officers who are summoned by TSA Officials would use their own independent discretion to determine whether there are sufficient grounds to take someone into custody.”

(This isn’t the first time DHS personnel have drawn improper adverse content-based inferences from travelers’ reading habits. John Gilmore was detained and subjected to “secondary screening” and notes made in his permanent DHS file (see slide 32) in 2007 because he was carrying a book entitled, “Drugs and Your Rights.”)

The decision by the 3rd Circuit left alive Mr. George’s claims against the police, and the police counter-claim against the TSA. The settlement dismisses those remaining claims in exchange for a $25,000 payment by the police to Mr. George, an agreement to re-educate the Philadelphia airport police about their duty not to delegate their authority to decide who to detain or arrest to the TSA, and the release of the TSA declaration.

We’re disappointed that the settlement leaves the ACLU unreimbursed for its costs of defending Mr. George’s rights, and that the TSA personnel got off scot free. But if there’s a silver lining in the settlement, it’s the TSA declaration, which may make it harder for local police to claim ignorance of the law or immunity from liability when they arrest people on the say-so of the TSA or on the basis of a TSA “referral”.

If you think there’s a chance that the TSA might call the cops on you — and as Mr. George’s experience shows, the TSA could call the cops on anyone, for any reason or no reason — you might want to consider carrying a copy of this declaration to show the police when they show up at checkpoint. And remember that you have the same rights in this setting as in any other encounter with police, including the right to remain silent.

Is this true? And does the attack on Charlie Hebdo provide any reason for Members of the European Parliament, or the European Court of Justice, to change their opinion that mandatory root access by governments to airline reservation databases is unjustified and violates fundamental rights?

No, and no.

The attack on Charlie Hebdo was an act of domestic terrorism carried out within France by French citizens. They didn’t travel by air or cross international borders. Their means of transportation to and from the scene of the crime in Paris was a car stolen elsewhere in the Paris metropolitan area. Airline reservations or border controls would have given no indication of the impending attack, and could not have been used to prevent it.

After the fact, police pursuing the perpetrators could have obtained search warrants, including warrants for PNR data or other airline records if there was a likelihood that they would be relevant, through normal judicial procedures.

Nothing about the attack on Charlie Hebdo provides any reason to give governments more power to engage in warrantless surveillance or profiling of travelers who aren’t suspected of any crime.

Comprehensive PNR surveillance is like the NSA’s dragnet interception and mining of Internet and telephone records — except that metadata about the movements of our physical bodies (PNR data) can be far more intimate that metadata about the movement of our messages. Which is more intrusive: For the NSA to know that you talked on the telephone or exchanged email messages or were in the same mobile phone “cell” with someone, or for the DHS or a European “Passenger Analysis Unit” to know from a hotel reservation passed on to the government as part of your PNR data that you slept in the same bed with that person?

The purpose of PNR-based surveillance is neither to investigate past crimes nor to track people who are already suspected of crimes. Those activities require neither new procedures nor new police powers. The only reason for governments to obtain the entire rich and intimately revealing PNR dataset for all air travelers is to identify new potential suspects, based on profiles and associations. Profiling and suspicion-by-association are the central purposes of a PNR system, not side effects or aberrations.

This product has been prepared by CIA’s CHECKPOINT Identity and Travel Intelligence Program. Located in the Identity Intelligence Center (i2c) within the Directorate of Science and Technology, CHECKPOINT serves the Intelligence Community by providing tailored identity and travel intelligence products. CHECKPOINT collects, analyzes, and disseminates information to help US intelligence personnel protect their identities and operational activities while abroad.

Most of the airline and government profiling and “screening” activities described in the reports, are already well-known. These include many of the ways that governments obtain and use Passenger Name Record (PNR) and Advance Passenger Information (API or APIS) data derived form airline reservations.

But these newly-released reports also confirm that the CIA (and the other agencies with which the reports have been shared within the US government) are aware of some airline and government activities and some vulnerabilities for travelers which we and others have complained about, but which the US government has not previously acknowledged.

Security services lacking APIS or PNR information may have other arrangements to receive passenger manifests ahead of time. For example, the Airport Police Intelligence Brigade (BIPA) of the Chilean Investigative Police does not routinely obtain advance passenger manifests but can request the information from airlines on an ad hoc basis to search for targets of interest. Strict privacy laws covering Danish citizens extend to all passengers traveling through Copenhagen airport such that the Danish Police Intelligence Service (PET) cannot legally obtain routine access to flight manifests. However, if one of PET’s four cooperative airline contacts is on duty, the service can unofficially request a search on a specific name, according to August 2007 liaison reporting.

Airline data obtained by government agencies through these extrajudicial channels is used for profiling and targeting of searches, questioning, and other adverse actions against travelers.

This practice is illegal in many of the countries where it is routine, but typically occurs without leaving a trace. Many airline staff are willing to betray their customers’ privacy to government agencies. And because no records are kept of who accesses PNR data, both government agents and their airline collaborators know that they are unlikely to be held accountable unless they confess or are caught in the act.

The persistence of routine “informal”, often illegal, and almost always unrecorded government access to airline data about travelers highlights a crucial issue we’ve been talking about for years: the complete absence of access logging in the architecture of the computerized reservation systems (CRSs) which host airlines’ PNR databases. CRSs have PNR change logs, but no PNR access logs.

Governments and travelers must demand that CRSs add comprehensive access logging to their core functionality for PNR hosting. That won’t stop the problem. Airline staff will still be able to show government agents printouts or let them look at displays, with only the airline personnel’s access being logged. But access logs will help, and are an essential first step toward control of PNR data “leakage”.

April 2007 reporting resulting from a liaison exchange with the Hungarian Special Service for National Security (SSNS) provides insights into factors considered by officers at Ferihegy airport in Budapest, Hungary when examining tickets. Officers check … whether the ticket fare code represents a government or military discount, or whether a government travel agency booked the ticket. Hotel and car reservations are similarly examined for unusual discounts or government affiliation.

Of course, the same PNR data elements and pricing and ticket designators can reveal other, non-governmental, affiliations between travelers and with other individuals and groups. If an airline gives a discount to members of a political organization, trade union, or other group attending a convention or meeting, for example, each PNR and ticket for a member who receives the discount typically includes some unique code.

Despite complaints, including ours, both US and European officials have denied that ticket designators and similar codes in PNRs can reveal sensitive associational data. Now we know that this information is already being used by European governments, and that the CIA is aware of these uses. There’s no more excuse for pretending that these data elements are innocuous or that they can be “shared” without risk to travelers.

Under color of a vestigial provision of Federal law related to an airline passenger profiling program that was discontinued more than four years ago, and applying the name of that program (and attempting to apply the same legal mandate) to an entirely new scheme, the TSA is adding a new, additional layer of passenger profiling to its pre-crime system for domestic airline flights within the United States.

The existence and TSA-mandated implementation of the new so-called “Computer-Assisted Passenger Prescreening System (CAPPS)” was first disclosed publicly in an obscure posting this Monday on the DHS website and an equally obscure notice published the same day in the Federal Register. According to both documents, the new CAPPS scheme has been under development since at least 2013, in secret collaboration between the TSA, the inter-departmental National Counterterrorism Center (NCTC), airlines, and private contractors.

What was the old CAPPS? What is the new CAPPS? And what does this mean for the rights of travelers?

Answering these simple-seeming questions requires understanding the history of government-mandated airline passenger profiling in the US and the shell game of labels that the government has applied to profiling schemes, as well as careful parsing of this week’s abstruse and uninformative (to the uninitiated) official notices.

Entities responsible for the operations of large passenger vessels and ports are already required to submit “security” plans to the Coast Guard. Because those current plans are filed in secret, it’s not entirely clear how the proposed requirements differ from current practices.

According to the NPRM, the Coast Guard’s guidelines for complying with the current regulations, in addition to various other supporting documents, were included in the rulemaking docket. We’ve confirmed with the docket office, however, that the Coast Guard never provided any of the supporting documents for posting on Regulations.gov or over-the-counter availability at the docket office. Presumably, a corrected notice with a new due date for comments will be published in the Federal Register once these documents are made publicly available.

From the summary in the NPRM, it appears that the main proposed changes are new requirements for port operators to:

(a) Screen all persons, baggage, and personal effects for dangerous substances and devices in accordance with the requirements in subpart E of this part;

(b) Check the identification of all persons seeking to enter the facility in accordance with §§ 101.514, 101.515, and 105.255 of this subchapter….

The difference in “screening” practices contemplated by the proposed rules seems to be that they would be more standardized than at present, more like those at airports, and would be required to enforce a Coast Guard “prohibited items” list. Although the list of items prohibited from aircraft is designated as “Sensitive Security Information”, the Coast Guard has included a tentative list of items proposed to be prohibited from cruise ship cabin baggage in the proposed rules. At the same time, the proposed rules would provide that:

The Prohibited Items List does not contain all possible items that may be prohibited from being brought on a cruise ship by passengers. The Coast Guard and the cruise ship terminal reserve the right to confiscate (and destroy) any articles that in our discretion are considered dangerous or pose a risk to the safety and security of the ship, or our guests, and no compensation will be provided.

Cruise ship passengers are already required to “present personal identification in order to gian entry to a vessel [or port] facility,” but it isn’t clear how or by whom this is supposed to be enforced. The propsoed rules would create a new obligation for port operators to check passengers’ ID credentials.

As with the definition of “prohibited items”, the definition of acceptable ID credentials is defined for air travel only in secret (SSI) TSA Security Directives and/or Standard Operating Procedures, but is defined publicly in Federal regulations for cruise ships.

The NPRM would leave the definition of acceptable ID unchanged. In addition to government-issued ID credentials, the regulations specifically provide for the acceptance of ID issued under thre authority of, “The individual’s employer, union, or trade association”, as long as it is laminated, includes a current photo, and baears the name of the issuing authority.

By its plain language, this regulation allows any self-employed person to issue their own self-signed personal ID credentials for access to port facilities.

That’s not inappropriate, since many self-employed contractors need to enter ports for business reasons.

In practice, most cruise lines enforce (with or without legal authority) ID requirements more stringent than those in Federal regulations. But we’d be interested in hearing from anyone who has presented self-signed ID credentials, in accordance with these regulations, for purposes of entry to a port or to board a cruise ship. Some cruise lines alloow guests onboard while ships are in port, such as friends seeing off passengers. So you might be able to experiment without being a passenger yourself.

“This Guidance … reaffirms the Federal government’s deep commitment to ensuring that its law enforcement agencies conduct their activities in an unbiased manner” — except at and near borders and coastlines and during any activity labelled “screening”.

According to a footnote, “This Guidance… does not, create any right … enforceable … against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.”

And in a huge exception hidden in the same footnote:

[T]his Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.

On a daily basis, however, more people are stopped and subjected to “administrative” searches as part of TSA and other Federal “screening activities” than are stopped at border and near-border checkpoints. These are the searches that are labelled as “screening”, rather than searches, by the TSA and other agencies that don’t want to admit that these searches are subject to the 4th Amendment.

The DOJ guidance is applicable to all Federal law enforcement officers, not just DOJ personnel. It includes TSA and other DHS officers everywhere except when they are in the vicinity of the border or carrying out “screening activities.” (Most TSA checkpoint staff aren’t law enforcement officers, despite their badges and their job title of “officer”, but some other TSA employees are.) So this exception isn’t about the DOJ not having jurisdiction over employees or contractors of the DHS or other agencies. The job of the DOJ includes interpreting Federal law for all executive agencies.

The only reason these activities were exempted from the DOJ guidelines is because the DHS argued successfully, to the DOJ and in whatever White House or other inter-agency process led to the issuance of the guidelines, that racial and other profiling was a proper element of its border, near-border, and “screening” activities — not an accident, oversight, or something DHS is trying to reduce or eliminate.